Thomas E. Woods, Jr.: Since long before Bush, the White House has abused its powers

[Thomas E. Woods Jr. is the author of the New York Times bestseller The Politically Incorrect Guide to American History.]

... According to Attorney General Alberto Gonzales, the reason the administration did not seek to revise FISA to give the president the clear and unambiguous power to order these wiretaps was that even a Republican Congress would not have gone along. In a Dec. 19 press briefing, the attorney general said, "We have had discussions with Congress in the past-certain members of Congress-as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

The administration's claim, as set forth by the attorney general, is that Congress implicitly agreed to such wiretaps when in the days following Sept.
11 it authorized the use of force against the perpetrators and their allies.
Of course, if Congress really had authorized them, it is not clear why it would be so difficult for the administration to persuade Congress to amend FISA accordingly in light of this permission.

Gonzales's argument calls to mind H.L. Mencken's 1937 "Constitution for the New Deal," a satirical rewrite of the U.S Constitution, which says of the attorney general, "It shall be his duty to provide legal opinions certifying to the constitutionality of all measures undertaken by the President."

As the controversy over the wiretapping developed, it was only a matter of time before the "even Lincoln did it" argument would be heard. GOP apologists did not disappoint, reminding Americans that Honest Abe engaged in massive violations of civil liberties while president. But Tom DiLorenzo raises the proper reply to such claims in the form of remarks by Supreme Court Justice David Davis-a personal friend of Lincoln-in the 1866 case Ex Parte Milligan:
"The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

As DiLorenzo suggests, if the government were to be given carte blanche during wartime, all that would be necessary to whittle away the people's liberties would be to concoct-or to provoke-an endless series of crises.

This is all deeply disturbing, to be sure. But to hear much of the Left tell it, the presidency of George W. Bush is a bizarre aberration in the history of the presidency and more or less sui generis. I have no objection to those who describe the Bush presidency as utterly disastrous, and I do not mean to excuse the president by recalling that the ideological and institutional roots of the imperial presidency extend back at least a century. My point, rather, is that a bit of history can enrich our understanding.

President Rutherford Hayes once warned that although American chief executives had to that point been conservative men wedded both to precedent and to modesty in the exercise of presidential power, a future president committed to concentrating power in his hands could make of the office what he wished. That future president would prove to be Theodore Roosevelt, a figure loved and admired to this day by Left and Right alike.

TR did not merely extend executive prerogative here or there; he put forth a full-fledged philosophy of the presidency that attempted to justify his dramatic expansion of that office. He contended that the president, by virtue of his election by the nation as a whole, possessed a unique claim to be the representative of the entire American people-a position taken by Andrew Jackson during the 1830s and for which he was sharply rebuked by John C.
Calhoun. Each member of the executive branch, but especially the president, "was a steward of the people bound actively and affirmatively to do all he could for the people." He could, therefore, "do anything that the needs of the nation demanded" unless expressly prohibited in the Constitution. "Under this interpretation of executive power," TR later reflected, "I did and caused to be done many things not previously done. . I did not usurp power, but I did greatly broaden the use of executive power."

Since TR believed himself to be doing the people's will, and since he believed his own rhetoric that portrayed the president as the people's unique representative in American government, his need to fulfill this special mission overrode concerns about the separation of powers. He remarked privately that in the United States, "as in any nation which amounts to anything, those in the end must govern who are willing actually to do the work of governing; and in so far as the Senate becomes a merely obstructionist body it will run the risk of seeing its power pass into other hands."

It was TR who pioneered rule by executive order as a governing style among American presidents. Many Americans rightly howled during the 1990s when Bill Clinton's aide Paul Begala famously said of executive orders, "Stroke of the pen, law of the land. Kinda cool." But Clinton, who once called Theodore Roosevelt his favorite Republican president, was only exercising a power that TR had made a major feature of the presidential office early in the century.

There are uses of executive orders that are unobjectionable from any standpoint. Thus it was by means of an executive order that George Washington, upon taking office as the first U.S. president, requested that the outgoing government prepare for him a report on the state of the country. A better-known example involves the presidential pardons that President Andrew Johnson issued by means of executive order to ex-Confederates following the Civil War.

There are plenty of examples of the abuse of executive orders as well. As early as 1793, the subject had already led to confrontation between Congress and the president when George Washington declared the United States neutral in the wars of the French Revolution. Congress later ratified the president's decision, but in the absence of statutory authority or constitutional prerogative, Washington's action, however innocuous it seems now, was viewed by some early Americans as an abuse of presidential power.

To appreciate the transformation that occurred in American government under TR, consider the number of executive orders issued by the presidents of the late 19th century. Presidents Hayes and Garfield each issued none. Arthur issued three, Grover Cleveland (first term) six, Benjamin Harrison four, Cleveland (second term) 71, and McKinley 51. TR issued 1,006.

Now, it is true that TR served nearly two terms. But that figure is so much higher than that of his predecessors that it reveals a vastly different philosophy of the presidency from that held by those who preceded him....